In a December 10 letter to President-elect Obama, Sen. Russ Feingold urged the next Administration to take a series of specific measures to strengthen the rule of law.  Distilled from the record (pdf) of a September 16 Senate Judiciary Committee hearing on the subject, the recommendations addressed four topics in particular:  separation of powers, excessive government secrecy, detention and interrogation policy, and domestic surveillance.

The letter’s recommendations on combating excessive government secrecy included brief reference to a proposal stressed by the Federation of American Scientists for a fundamental review of agency classification guides to eliminate obsolete or unnecessary classification instructions.

Establishing such a review may be even more important than revising the executive order on classification or rescinding of the Ashcroft policy on FOIA, both desirable steps but which are only loosely coupled to daily secrecy decisions.  By comparison, revising agency classification guides — which specify what information shall be classified at what level — and updating them to eliminate spurious secrecy requirements would have immediate favorable consequences for agency practice, particularly since many classification guides have not been reviewed for years.  (See “Overcoming Overclassification,” Secrecy News, September 16, 2008.)

Noteworthy new and updated reports from the Congressional Research Service obtained by Secrecy News include the following.

“Iran’s Nuclear Program: Status,” updated November 20, 2008.

“Iran: Ethnic and Religious Minorities,” updated November 25, 2008.

“Iran: U.S. Concerns and Policy Responses,” updated November 24, 2008.

“Presidential Libraries: The Federal System and Related Legislation,” updated November 26, 2008.

“Nonmarital Childbearing: Trends, Reasons, and Public Policy Interventions,” November 20, 2008.

“Border Searches of Laptop Computers and Other Electronic Storage Devices,” updated November 17, 2008.

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In a tense and adversarial meeting at the State Department yesterday, the chairman of the Department’s Historical Advisory Committee warned that the future of the Department’s “Foreign Relations of the United States” (FRUS) series, which is the official record of U.S. foreign policy, is in jeopardy due to mismanagement by the Office of the Historian. Underscoring his concerns, he announced his resignation from the Committee.

An Assistant Secretary of State rebuffed the criticism.  He accused Committee members of engaging in innuendo and ad hominem attacks, and he abruptly walked out of the meeting.

William Roger Louis, the esteemed historian who has chaired the Committee for the last five years, presented his views in a letter to Secretary of State Condoleezza Rice (pdf), which he read into the public record at the December 10 meeting.

“The Historian’s Office has become an intolerable place to work; the exodus of experienced historians is significant; and the future of the Foreign Relations series is at risk,” Prof. Louis said.

“My concern, along with that of all members of the committee, arises from mismanagement by the Historian himself, Dr. Marc Susser.  So large are the numbers of staff members leaving, or contemplating departure, that the integrity of the Foreign Relations series is now in jeopardy,” he wrote.

An analysis (pdf) appended to Prof. Louis’ statement said that “This year alone the office has lost 20% of its FRUS staff (7 of 35 members) and 30% of its FRUS staff experience (64 of 212 years).”

In a separate memorandum to the Secretary (pdf), Prof. Thomas Schwartz, another prominent historian and a former member of the Committee, echoed those concerns. (Following the criticisms he voiced in the Committee’s last annual report, Prof. Schwartz’s membership was pointedly not renewed, in what was interpreted by other Committee members as an attempt to intimidate them.)

“Simply put, there are enormous problems within the Office of the Historian, and they stem largely from the management style of Dr. Susser,” Prof. Schwartz wrote. “The forced retirement this past summer of Dr. Edward Keefer, the FRUS series editor…, was only the latest example of a management style that insisted on abject and subservient loyalty to Dr. Susser at the expense of competence and performance in the achievement of the goals of the office.”

The criticism was rejected by the State Department.

“I hardly think that the kind of ad hominem attacks you have engaged in are the kind of behavior we expect from respected academics,” said Sean McCormack, the Assistant Secretary of State for Public Affairs.  “To express concern about the timeliness and quality of the FRUS series is fine. But to attack individuals in public?  I find that objectionable.”

“I will not sit here and listen to personal attacks on the leadership of this office,” he said, before exiting the meeting.

In a written reply to Prof. Louis (pdf), Secretary McCormack added: “By taking these actions, I feel you are obscuring the very thing you hope to accomplish: to raise questions about the quality of the FRUS. I do not believe you can dispute the fact that disagreements with the Historian’s Office have become entangled with personal issues that have nothing to do with the quality of scholarship. While you have decided to walk away from the FRUS, I will continue in my efforts to ensure its continuing timeliness and quality.”

Mr. McCormack also released an annotated version (pdf) of the Committee’s latest annual report (pdf), with point-by-point responses from the Historian’s Office to the criticisms expressed there.

“I regret that I have to sit hear and listen to this decline to the level of slime and innuendo,” said Dr. Marc Susser, the State Department Historian and the principal object of Committee criticism.  “We welcome all constructive criticism, but not personnel issues, hiring, firing, or comings and goings of staff.”

But “This is not a conflict of personalities,” Prof. Louis said, noting that his relations with the Historian had always been cordial and professional.  “I am resigning on a point of principle.”

At the end of the day, it remained true that there has been a significant departure of qualified staff from the Historian’s Office, and that the FRUS series was far behind its legally-mandated schedule.

“The Foreign Relations series… is regarded throughout the world as a model of its kind, indispensable to the American public, the Congress, and above all the Department of State itself,” Prof. Louis wrote in his letter to Secretary Rice.  “It is a tribute to the US Government that such an accurate and comprehensive series exists.  In short, the Foreign Relations series stands as a symbol of commitment to openness and accountability.  It would be no less than a tragedy to allow the series to falter or decline.”

Update: Prof. Edward Rhodes also announced his resignation from the State Department Historical Advisory Committee on December 10. He described his reasons in a December 2 letter (pdf) to the Secretary of State.

As a matter of policy, the Congressional Research Service does not make its products directly available to the public.  Recent reports from CRS on climate change and related topics obtained by Secrecy News include these (all pdf).

“Global Climate Change: Three Policy Perspectives,” updated November 26, 2008.

“Greenhouse Gas Emissions: Perspectives on the Top 20 Emitters and Developed Versus Developing Nations,” updated November 28, 2008.

“Climate Change: Design Approaches for a Greenhouse Gas Reduction Program,” updated November 24, 2008.

“Climate Change and the EU Emissions Trading Scheme (ETS): Kyoto and Beyond,” updated November 24, 2008.

“Are Carbon Dioxide Emissions Rising More Rapidly Than Expected?,” October 17, 2008.

“Capturing CO2 from Coal-Fired Power Plants: Challenges for a Comprehensive Strategy,” August 15, 2008.

“The Carbon Cycle: Implications for Climate Change and Congress,” updated March 13, 2008.

“Climate Change: Federal Laws and Policies Related to Greenhouse Gas Reductions,” updated January 28, 2008.

“U.S. Global Climate Change Policy: Evolving Views on Cost, Competitiveness, and Comprehensiveness,” updated January 28, 2008.

“The security classification process … remains a major impediment to interagency information sharing,” a new report from the congressionally mandated supported Project on National Security Reform reaffirmed last week.

The 830-page report (pdf) proposes a significant restructuring of the U.S. government national security decision-making apparatus in order to increase integration and operational agility.  The report addresses a range of organizational pathologies that afflict the national security system, and mines the literature on organizational behavior for new approaches to national security policy development and implementation.  It grapples with serious issues, and flickers intermittently with insight and fresh thinking.

Unfortunately, although the report devotes sustained attention to classification policy, its analysis of that subject and its resulting recommendations are rather shallow.

“Sharing information across organizational boundaries is difficult… [because] agency cultures discourage information sharing,” the report states.  But this is a restatement of the problem, not an explanation of it.

“Compartmentalized and obfuscatory classification procedures must be revised,” the authors recommend.  They vaguely advocate a “common [government-wide] approach for information classification [that] will increase transparency, improve accessibility, and reinforce the overall notion that personnel in the national security system are stewards of the nation’s information, not owners thereof.”

At the same time, they acknowledge that the much “simpler” problem of establishing a government-wide approach to handling sensitive unclassified information required extensive coordination over a period of years “and its ultimate success is not yet evident.”

And so the real upshot of the report’s argument is that the classification system cannot be fixed at all, at least not in isolation or on its own existing terms.  Rather, the authors argue, the entire national security apparatus must be reconceived and reconstructed to permit extremely agile, ad hoc teams of expert problem solvers drawn from all relevant agencies to temporarily collaborate on a particular issue and then to dissolve.

“Below the president, the national security system must be broken down into structures that easily attach, detach, and reattach with others to solve problems efficiently while remaining accountable to higher authorities who have the responsibility to monitor their performance.”

When that idyllic state has been achieved, then classification barriers will also have ceased to be a problem.

See “Forging a New Shield,” Project on National Security Reform, November 2008.

“The notion of secret law has been described in court opinions and law treatises as ‘repugnant’ and ‘an abomination’,” observed Sen. Russ Feingold. “It is a basic tenet of democracy that the people have a right to know the law.”

“But the law that applies in this country is determined not only by statutes and regulations, but also by the controlling interpretations of courts and, in some cases, the executive branch. More and more, this body of executive and judicial law is being kept secret from Congress as well,” he said.

To probe that subject, Sen. Feingold’s subcommittee of the Senate Judiciary Committee held a hearing last April 30, the full record of which has just been published.  See “Secret Law and the Threat to Democratic and Accountable Government.”

The hearing volume includes newly published responses (pdf) to questions for the record from John P. Elwood of the Justice Department Office of Legal Counsel, Prof. Dawn E. Johnsen, who is now working with the Obama transition team, former ISOO director J. William Leonard, myself, and others.

The Obama transition team announced last week that it would provide unrestricted online access to information and documents submitted by outside groups and individuals.

“Every day, we meet with organizations who present ideas for the Transition and the Administration, both orally and in writing,” wrote transition co-chair John Podesta in a December 5 memo (pdf). “We want to ensure that we give the American people a ‘seat at the table’ and that we receive the benefit of their feedback.”

One might think that the disclosure of advice and recommendations contributed by outside parties is a small, easy step to take.  But remarkably, such outside advice has often been kept secret.  Most famously, Vice President Cheney fought to preserve the secrecy of his 2001 Energy Task Force.

Even non-zealots like the members of the CIA Historical Review Panel (HRP) have surrendered to secrecy.  “Because the HRP’s advice to the DCIA must be completely frank and candid, we are not reporting Panel recommendations,” wrote panel chair Prof. Robert Jervis of Columbia University in the Panel’s latest statement, implying strangely that his panel is unable to express its views on CIA classification policy candidly in public.  There is no indication so far that would-be Obama advisors feel any similar constraint.

The broader significance of the new Obama transition team policy was assessed by John Wonderlich of the Sunlight Foundation in “Obama and Affirmative Disclosure.”

The Department of Defense has updated its policy on “humanitarian and civic assistance activities,” which are “conducted in conjunction with authorized military operations” abroad.  See DoD Instruction 2205.02 (pdf), December 2, 2008.

Medical assistance is a potentially important element of counterinsurgency operations in Afghanistan, argued a senior military medical officer earlier this year.  See “The Role of Medical Diplomacy in Stabilizing Afghanistan” (pdf), by Donald F. Thompson, Defense Horizons, May 2008.  (Interestingly, however, he noted that such assistance can sometimes backfire by “undercutting the confidence of the local population in their own government’s ability to provide essential services.”)

Former Senator Bill Frist has called for increased investment in medical diplomacy, and warned against letting U.S. adversaries get “ahead” on this front.

“We cannot allow countries in direct security and economic competition with America … to use health diplomacy as a means of building new alliances, attracting new followers, or otherwise strengthening their position vis-a-vis our nation,” he wrote (pdf) in Yale Law and Policy Review (Fall 2007).

In 2004, Congress enacted an ambiguously-worded statute that made it a crime to produce, possess, or use the variola virus (which causes smallpox) or any derivative of it that has more than 85 percent of the variola gene sequence.

Scientists were alarmed because the statute could be read to prohibit possession of other viruses that are used in research, and to compromise the development of vaccines.  The National Science Advisory Board for Biosecurity, which advises the Secretary of Health and Human Services, recommended that the statute be repealed.

But it wasn’t repealed.  Instead, it was “interpreted” by the Justice Department Office of Legal Counsel (OLC) to eliminate the problem.  The OLC opinion (pdf), published by the Justice Department this week, said that the prohibition extends only to viruses that cause smallpox and those that are deliberately engineered by human manipulation of the smallpox virus itself.  The vaccine developers and other scientific researchers were off the hook.

No sensible person would be likely to object to the conclusion reached by OLC.  What seems problematic, however, is the interpretive process and the quasi-legislative authority that OLC now has to define and redefine the terms of existing laws.  In this case, OLC interpretation was the functional equivalent of statutory amendment or repeal.  And though unclassified, the July 2008 OLC ruling remained unpublished for several months.  One can only imagine what OLC may be doing in classified areas.

Steven G. Bradbury, the head of the Office of Legal Counsel, recently responded to numerous questions (and deflected others) regarding the conduct of his office posed by members of the House Judiciary Committee following a February 14, 2008 hearing.

Substantive replies were given (pdf) to questions such as these:  If an OLC opinion is incorrect, would it still confer immunity on a person who relied on it?  (Basically, yes.) How does the Department decide which OLC memoranda and opinions are to be classified and which are to be released to the public?  (OLC does not have original classification authority, and proceeds on a case by case basis.)  Can the President change his interpretation of an Executive Order without formally amending the order or issuing a new one?  (Yes, he said.)

Other questions, such as why Deputy Attorney General James Comey said that officials would be “ashamed” when the public learned of certain OLC legal interpretations, were not directly answered.

And still others, such as the limits of Presidential authority, cannot be definitely answered at all, Mr. Bradbury said.  “The President’s independent constitutional powers, including his powers as Commander in Chief, have never been fully defined, and cannot be, because their contours necessarily depend on the concrete exigencies of particular events.”

Mr. Bradbury’s answers to questions for the record were transmitted on August 18, 2008, and published in the PDF version of “Justice Department’s Office of Legal Counsel,” hearing before the House Judiciary Committee, February 14, 2008.

Index on Censorship, the British magazine on freedom of expression, devotes its latest issue to secrecy, surveillance and executive authority in the United States at the end of the Bush Administration.  It features articles by Jameel Jaffer, Geoffrey R. Stone, Eric Lichtblau, Patrick Radden Keefe, and myself, among others.  Many of the articles can be viewed online.

“For all its apparent openness, its televised debates and public hearings, Congress is more secretive than its reputation suggests,” writes Tim Starks in a Congressional Quarterly Weekly cover story.  “Critics of congressional secrecy argue that the practice is not only undemocratic, it is particularly hypocritical, and it undercuts the public’s confidence in government.”  See “A Dome Under Lock and Key” by Tim Starks, CQ, November 30.

Noteworthy new Congressional publications on arms control-related topics include the following.

“North Korea and Its Nuclear Program — A Reality Check” (pdf), Report to the Senate Committee on Foreign Relations, October 2008.

“International Convention for Suppression of Nuclear Terrorism,” Report of the Senate Committee on Foreign Relations, September 11, 2008.

“Technologies to Combat Weapons of Mass Destruction,” hearing before the Senate Armed Services Committee, March 12, 2008.